P.N Mookerjee, J.:— This appeal is by the defendant and it arises out of a suit for ejectment in respect of Room No. 8, ground floor, of Premises No. 129/1, Bowbazar Street. The contractual rent was Rs. 61.87 nP. per month, payable according to the English calendar month. (Para 1).
1. The defendant's above tenancy was purported to be terminated by a notice, dated July 26, 1957, expiring with the expiry of the month of August, 1959. The notice was attempted to be served by registered post but it came back with an endorsement “left”. It was also attempted to be served in the disputed premises and, according to the return of the person, who attempted this service, it appears to have been offered to an alleged officer of the defendant and he not having agreed to sign the receipt, it was served by affixation or hanging in the above premises. This was done on July 27, 1959, and the present suit was brought on September 19, 1959, the allegation in the plaint being that the defendant, having been a defaulter in the payment of rent for much more than the requisite four months, was not entitled to any protection under the relevant rent control law (the West Bengal Premises Tenancy Act, 1956). The default alleged was, in particular, with respect to the period since 1957.
2. The present suit was preceded by another suit for ejectment against the same tenant on the ground of reasonable requirement. That suit was decreed initially by the learned trial Judge on December 23, 1957, but, eventually, on appeal, it was dismissed on May 20, 1959, and, thereafter, as it appears, the above steps were taken for terminating the defendant's tenancy and institution of the present suit on the ground of default, as alleged therein. In the present suit, on February 11, 1960, after service of summons and within a month thereafter, the defendant deposited the defaulted rents in question, namely, from September, 1957, to April, 1959, by a challen, filed on that day. The suit, thereafter, proceeded and it has, eventually, been decreed by the learned trial Judge, who has held in favour of the plaintiff on the above question of default, on the question of validity and sufficiency of the notice of ejectment and also on the question of its service. It is against this decree that the present appeal has been filed by the defendant appellant.
3. Before us, various points were taken, in support of the appeal, to challenge the decree of the learned trial Judge. It was contended first that there was no relationship of landlord and tenant between the parties and, as such, the suit was not maintainable. It was, however, clearly established by the evidence in the case that the pre sent plaintiff had acquired the land lord's interest in the disputed premises and the defendant has, under the law, become a tenant in respect of the same under the plaintiff. The defence objection in this respect was, in our opinion, rightly overruled by the learned trial Judge on the materials on record.
4. It was further contended that, in any event, the defendant was not a defaulter for the requisite period to disentitle him to the protection of the above rent control law, namely, the West Bengal Premises Tenancy Act, 1956. The admitted position, however, is that the rents for the period September, 1957, to April, 1959, were deposited in Court in the present suit only on February 11, 1960, and the same cannot at all be taken to be a valid deposit under the law. It was, however, pressed before us that, as, during the said period, the previous ejectment suit was pending, there was no relationship of landlord and tenant between the parties and the defendant was under no obligation to pay or deposit rent. This contention has only to be stated to be rejected. If a “tenant” wants to avail himself of the protection of the above Act, he is under an obligation to continue payment or deposit of rent so long as he remains in possession or wants to remain in possession. Once he makes a default in this respect and the default extends to the requisite period under the above Act, namely, four months, he becomes absolutely disentitled to the protection under the Act. The Act obviously seeks to protect ex-tenants, who would discharge their obligations under the Act, and, indeed, the protection cannot be (extended?) except to ex-tenants, as persons, whose tenancies have not terminated do not require any protection under the above Act. The argument, therefore, that because the contructual tenancy had ended and the previous suit was pending at the time, the defendant had no obligation to deposit rent for availing himself of the protection of the above Act, cannot be accepted. If he did not deposit the rent but made the requisite default, he did so at his own risk and his own omission in this respect, intentional or otherwise, now recoils upon him.
5. Clearly, therefore, the ground of default, as alleged in the plaint, has been made out, and, if the plaintiff be otherwise entitled to a decree, the defendant would not be able to resist him by reference to the above Act. The point, however, is whether the plaintiff has succeeded in proving the service of the notice of ejectment according to law. That was one of the contentions between the parties on the point of notice and, although the other contention under this head, namely, as to the validity & sufficiency of the said notice, has little substance upon the language of the same, the question of service raises, at least, a technical point in favour of the defendant. The service has to be made according to the provisions of the second part of Sec. 106 of the Transfer of Property Act, which provides for service of such notices and the terms whereof must be complied with, if the plaintiff landlord wants an ejectment.
6. In the instant case, the notice of ejectment was, undoubtedly, sent by registered post but it came back with the remark “left”. This prima facie, means that the postal peon could not contact the defendant. Accordingly, it should be taken that no tender of the notice to the defendant, particularly when there is no definite or specific evidence to that effect. The presumption, which would have otherwise arisen under the law (Vide Sec. 27 of the Indian General Clauses Act and Sec. 28 of the Bengal General Clauses Act) in favour of the plaintiff and which presumption is, on the face of it, a rebuttable presumption, would be rebutted. Service by registered post cannot, therefore, be availed of by the plaintiff in the present case.
7. Reliance was placed by Mr. Dasgupta on two decisions of this Court, (i) Sitanath Mondal v. Soleman Molla, 51 C.W.N 650, and (2) Nagendranath Karmakar v. Jotish Chandra Mukherjee, A.I.R 1952 Cal. 221, for supporting his contention that, even when a notice, sent by registered post, is returned with such an endorsement, namely, “left”, the presumption in favour of due service applies. Apart from anything else, the said two cases appear to be distinguishable. In both of them, the learned Judges appear to have been of the opinion that the endorsement ‘left’ was incorrect and, in the facts and circumstances before them, the notices must be held to have been duly served. The question, say the learned Judges, is one of fact, depending on the facts and circumstances of each particular case, and their decision must be read in that light.
8. We may, however, make it clear that, when the record contains only the returned notice with the endorsement ‘left’, that, on the face of it and in the absence of anything else, rebuts the presumption, raised under the General Clauses Act, in favour of due service by registered post. We are, therefore, unable to accept Mr. Dasgupta's argument that there was due service of the notice in the instant case by registered post.
9. The point then arises whether service was effected in any of the other modes, prescribed by law. There is, admittedly, no question and no attempt of personal service here, because, obviously, according to the person, who affixed the notice on the disputed premises, he did not meet the defendant. There is also no evidence that the defendant had any authorised person to receive the notice on his behalf at the place. The question then crops up whether this was the second mode of service, contemplated by the statute, namely, service upon a servant at the residence of the defendant.
10. The two points, which will arise in this connection, will be (1) whether the person, to whom the notice is said to have been offered, was a servant of the defendant within the meaning of the relevant part of the statute, and (2) whether this particular premises can be held to be the residence of the defendant. On record, we have a categorical statement of the defendant that he was a resident of Tangra. There was no cross-examination on this but the plaintiff may very well urge that there was no indication of any such plea prior to the said evidence. In the circumstances, although, on the evidence, as it stands, the disputed premises cannot be said to be the defendant's residence, we would not put the plain tiff altogether out of Court but we would give him a chance of proving that the disputed premises was the residence of the defendant and that the notice was tendered, at that place, to a servant of the defendant, as contemplated under the relevant part of Sec. 106, this aspect of the matter, too, not having been sufficiently adverted to by or in the court below.
11. For the above purpose, this case will have to go back to the learned trial Judge for fresh consideration and both parties will have opportunities of adducing further evidence on the above two points to enable the Court to come to proper conclusion on the same.
12. Be it mentioned that only the above question of residence and the question whether the person, to whom the notice is said to have been tendered, was a servant of the defendant under the relevant law, would be the points for consideration at this limited rehearing, and, if, upon those two points, the conclusion be in the plaintiff's favour, he will immediately be entitled to a decree in the suit. If, on the other hand, on any of those points, the conclusion be against the plaintiff, his present suit must fail.
13. Subject to the above observations, we allow this appeal, set aside the judgment and decree of the learned trial Judge and send the matter back to him for fresh consideration on the limited questions, hereinbefore stated, in the light of the observations, made in this judgment, for a proper decision of the instant case.
14. Costs of this appeal will abide the final result of the suit.
15. The re-hearing will be expedited by the learned trial Judge as much as possible.
D. Basu, J.:— I agree.
P.N.C